Perfunctory Qualified-Immunity Briefing Forfeits the Defense and Defeats Interlocutory Appellate Jurisdiction (Sixth Circuit)

Case: Montaz Lee Kennedy v. India Smith (No. 25-1880)
Court: U.S. Court of Appeals for the Sixth Circuit
Date: 2026-04-20 (Not Recommended for Publication)
Author: Judge Nalbandian (joined by Judges Kethledge and Ritz)

1. Introduction

This appeal arose from a 42 U.S.C. § 1983 suit in which Montaz Kennedy (a homeless-shelter resident, proceeding pro se in the district court) alleged that Highland Park police officer India Smith retaliated against him for protected speech in violation of the First Amendment. According to Kennedy, Smith threatened to arrest him after she overheard him call one of her questions “dumb” and after he encouraged another resident to obtain Smith’s name and badge number; Smith also allegedly told the shelter’s director that Kennedy was interfering in an investigation, potentially jeopardizing his housing.

On summary judgment, Smith invoked qualified immunity but did so in a highly conclusory fashion. The magistrate judge recommended denial, concluding that Smith had forfeited the defense by perfunctory briefing (and alternatively that she failed on the merits). The district court adopted that recommendation. Smith then filed an interlocutory appeal limited to whether her actions violated clearly established law.

The key issue in the Sixth Circuit was not whether qualified immunity ultimately applied, but whether Smith preserved the defense in a manner that allowed interlocutory appellate review. The court held that she did not.

2. Summary of the Opinion

The Sixth Circuit dismissed Smith’s interlocutory appeal for lack of jurisdiction. It held that the district court did not abuse its discretion in finding Smith forfeited qualified immunity by presenting only a perfunctory, undeveloped two-sentence “application” that failed to connect facts to the qualified-immunity framework. Because forfeiture meant there was no preserved qualified-immunity issue for interlocutory review, the appeal amounted to an ordinary summary-judgment dispute outside the court’s interlocutory jurisdiction.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

• King v. Taylor, 694 F.3d 650 (6th Cir. 2012)
  The court relied on King for the standard of review: forfeiture rulings are reviewed for abuse of discretion. That framing matters because it gives district courts meaningful latitude to enforce briefing requirements and manage litigation efficiently.
• Norton Outdoor Advert., Inc. v. Village of St. Bernard, 168 F.4th 897 (6th Cir. 2026)
  Norton supplied the Sixth Circuit’s articulation of what constitutes an abuse of discretion (clear factual error, wrong legal standard, misapplication, or clear error of judgment) and the “range of plausible assessments” concept. It reinforced that the appellate court’s role is not to decide how it would have handled the briefing, but whether the district court’s call was unreasonable.
• McPherson v. Kelsey, 125 F.3d 989 (6th Cir. 1997)
  The opinion uses McPherson to emphasize a bedrock appellate and trial principle: it is not enough to gesture at an argument “in the most skeletal way” and expect the court to construct it. This principle is the foundation for treating conclusory qualified-immunity invocations as forfeited.
• Cockrun v. Berrien County, 101 F.4th 416 (6th Cir. 2024)
  Cockrun is the opinion’s central modern anchor. It stands for (i) perfunctory, fact-free qualified-immunity assertions at summary judgment forfeit the defense; (ii) courts rarely review forfeited issues; and (iii) when forfeiture stands, an attempted interlocutory appeal becomes an unreviewable summary-judgment dispute, requiring dismissal for lack of jurisdiction. The panel repeatedly analogized Smith’s brief to the insufficient briefing in Cockrun.
• Scottsdale Ins. Co. v. Flowers, 513 F.3d 546 (6th Cir. 2008)
  The court invoked Scottsdale for the narrowness of the “exceptional cases”/“plain miscarriage of justice” safety valve. Smith did not argue why such rare discretionary review should apply, undercutting any path around forfeiture.
• McDonald v. Flake, 814 F.3d 804 (6th Cir. 2016)
  McDonald was cited to acknowledge qualified immunity’s burden-shifting structure (once properly raised, plaintiff must show (1) a constitutional violation and (2) clearly established law). But the court used that acknowledgement to draw a line: burden-shifting does not excuse a defendant from properly raising and developing the defense in the first place.
• Watkins v. Healy, 986 F.3d 648 (6th Cir. 2021)
  Watkins provided a close analogue: supplying only a paragraph describing the two-prong test without applying it to the case forfeited the defense. Smith’s approach—legal standard plus conclusory “application”—fell squarely within the Watkins problem.
• Ashford v. Univ. of Michigan, 89 F.4th 960 (6th Cir. 2024) and Tamm v. Nerad, 2025 WL 2674302 (6th Cir. Sep. 8, 2025)
  These cases were used for the operational requirement: defendants must “connect the facts” to the “two-pronged test.” Qualified immunity is not preserved by reciting doctrine; it requires a fact-tethered argument.
• Evans v. Vinson, 427 F. App'x 437 (6th Cir. 2011)
  The panel cited Evans as further support that extended legal discussion with “no attempt at argument” can still be forfeiture—underscoring that length is not the test; application is.
• United States v. Roach, 502 F.3d 425 (6th Cir. 2007)
  Roach contributed the characterization of a two-sentence argument as a “near-paradigmatic example of perfunctory argument,” reinforcing why Smith’s two-sentence “application” was insufficient.
• Anders v. Cuevas, 984 F.3d 1166 (6th Cir. 2021)
  Anders supplied the elements of a First Amendment retaliation claim (protected speech, adverse action, causation). The panel used this framework to explain why qualified immunity could turn on multiple distinct sub-issues; a defendant’s failure to specify which prong/element is contested can prejudice a plaintiff’s ability to respond.
• Yeomalakis v. FDIC, 562 F.3d 56 (1st Cir. 2009)
  The Sixth Circuit borrowed Yeomalakis to reject the idea that courts must assemble an argument from “assorted hints and references scattered throughout the brief.” This supported the district court’s decision not to cobble together a qualified-immunity theory from Smith’s separate “adverse action” discussion.
• McNeal v. Kott, 590 F. App'x 566 (6th Cir. 2014)
  Smith relied on McNeal to argue forfeiture should not apply when an issue is raised at a “pragmatically sufficient time” and the opponent is not prejudiced. The court distinguished McNeal by referencing Cockrun’s explanation that McNeal was procedurally unique (the district court had addressed qualified immunity on the merits multiple times before forfeiture was raised).
• Josephson v. Ganzel, 115 F.4th 771 (6th Cir. 2024)
  Cited to show that in First Amendment retaliation cases, “clearly established” analysis may be element-specific (e.g., whether speech was protected, whether conduct was adverse). This reinforced the prejudice point: absent a developed qualified-immunity argument, a plaintiff cannot know which “clearly established” pathway to rebut.

3.2 Legal Reasoning

The panel’s reasoning proceeded in three main steps:

1. Forfeiture is reviewed deferentially.
   Under King v. Taylor and Norton Outdoor Advert., Inc. v. Village of St. Bernard, the question was not whether the Sixth Circuit could imagine a qualified-immunity argument, but whether the district court made a clear legal/factual mistake or an implausible judgment call.
2. Qualified immunity must be argued, not invoked.
   The court treated Smith’s “At all times, Officer Smith was acting in a lawful and/or immune fashion…” as the type of skeletal, conclusory statement condemned by McPherson v. Kelsey, Watkins v. Healy, and Cockrun v. Berrien County. Even though qualified immunity can shift burdens once properly raised, defendants must still do the threshold work of:
   • coming forward with facts suggesting they acted within discretionary authority (Cockrun), and
   • connecting those facts to the two-prong test (Ashford; Tamm).
   Smith did neither.
3. No duty to reconstruct arguments; prejudice is plausible.
   Smith suggested that her “adverse action” discussion implicitly addressed the first prong. The panel rejected any obligation for the district court to assemble a qualified-immunity “skeleton from a pile of bones,” relying on Yeomalakis v. FDIC. The court also found it reasonable for the district court to perceive prejudice: because qualified immunity can turn on multiple components of the retaliation claim (Anders; Josephson), Smith’s failure to specify and apply the doctrine deprived Kennedy of notice as to what he needed to meet.

Having upheld forfeiture, the panel applied Cockrun’s jurisdictional consequence: absent a preserved qualified-immunity issue, the interlocutory appeal is merely a quarrel with the denial of summary judgment—over which the appellate court lacks jurisdiction at that stage.

3.3 Impact

• Elevated briefing discipline for qualified immunity in the Sixth Circuit.
  The opinion reinforces a clear expectation: defendants must provide a fact-specific qualified-immunity analysis at summary judgment, not boilerplate. Even when defendants devote space to the legal standard, failure to apply it to record facts risks forfeiture.
• Procedural leverage shifts to well-briefed records.
  Qualified immunity is often litigated for its early-exit and interlocutory-appeal features. This decision underscores that those features are not automatic; they can be lost through inadequate briefing, converting a would-be immediately appealable question into an unappealable summary-judgment dispute.
• District courts are affirmed as gatekeepers.
  By emphasizing abuse-of-discretion review and declining to require reconstruction of arguments, the Sixth Circuit strengthens district court authority to demand developed advocacy and to manage dockets without becoming advocates for either side.
• Plaintiff-side strategy: preserve the forfeiture argument.
  The opinion shows that plaintiffs can successfully defend against an interlocutory qualified-immunity appeal by focusing on preservation and forfeiture, without engaging the merits—especially when the defense was not properly presented below.

4. Complex Concepts Simplified

• Qualified immunity: A doctrine that can shield government officials from damages unless (1) they violated the Constitution and (2) the unlawfulness was “clearly established” at the time. It is not enough to say “qualified immunity”; the party must explain how the doctrine applies to the facts.
• Forfeiture (vs. waiver): Forfeiture is the loss of an argument by failing to raise or develop it properly; waiver is an intentional relinquishment. The opinion treats Smith’s undeveloped briefing as forfeiture.
• Summary judgment: A pretrial decision based on the record (depositions, documents, etc.) that no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law. Arguments must be tied to record evidence.
• Interlocutory appeal: An appeal taken before final judgment. Qualified-immunity denials can sometimes be appealed immediately, but only when a preserved legal issue is presented. If the defense is forfeited, the court may lack jurisdiction to hear the appeal at that stage.
• “Adverse action” in First Amendment retaliation: Conduct that would deter a person of ordinary firmness from engaging in protected speech. The court noted that even if Smith argued “adverse action,” she still had to connect that argument to the qualified-immunity framework.

5. Conclusion

Kennedy v. Smith reinforces a practical but consequential procedural rule in the Sixth Circuit: qualified immunity must be meaningfully argued with applied facts and a clear connection to the two-prong test. A perfunctory assertion can forfeit the defense, and once forfeiture is upheld, an interlocutory appeal from the denial of qualified immunity collapses into a non-appealable summary-judgment dispute—requiring dismissal for lack of jurisdiction. The opinion thus operates less as a merits ruling on First Amendment retaliation and more as a strong signal that qualified immunity’s powerful procedural benefits depend on competent, case-specific briefing in the district court.